Did Kanye West Illegally Record Taylor Swift?

It started in 2009 at the MTV Video Music Awards. Kanye West interrupted an acceptance speech by Taylor Swift, who had just received the Best Female Video award. West grabbed the microphone and said that a video by Beyoncé was one of the best videos “of all time.” West was then booed by the live audience. He handed the microphone back to Swift and left the stage. The incident became a major global news story with plenty of publicity for everyone involved.

Seven years later, Kanye West’s feud with Taylor Swift has exploded again, but this time, there’s more than publicity at stake. If you’re familiar with Kanye West’s song “Famous,” you know there is a lyric about Taylor Swift in it. The latest development in the media feud could land all of the principals involved in a California courtroom. In July, West’s wife, Kim Kardashian, released a recording of an alleged phone call between Swift and West discussing the song. During that call, Swift reportedly “approves” of a lyric that refers to her in a suggestive way.

After Kardashian released the phone call recording, Swift posted to Instagram that the telephone call was “secretly” recorded. People magazine is reporting that West not only recorded the conversation, but that he failed to inform Swift at the start of the discussion that he was recording it. If that report is true, Kanye West may have violated California’s “two-party consent” law, and that failure is a felony in this state.

WHAT LEGAL PENALTIES DOES KIM KARDASHIAN POTENTIALLY FACE?

It could also be argued that Kim Kardashian “abetted” the alleged crime, and Ms. Kardashian could potentially be charged under California Penal Code 637 for willfully disclosing the contents of a private phone call without the permission of all parties involved. A conviction for violating Penal Code 637 can be penalized by a year in a California state prison and a fine of up to $5,000.

Ms. Kardashian potentially could also be sued for invasion of privacy, as Taylor Swift probably had a reasonable expectation that the call and its content was and would remain confidential. If such a lawsuit emerges, Ms. Kardashian’s side would probably argue that there’s really nothing private at all about the West-Swift “feud” because it’s sought-after news about two popular public figures.

And it appears that Taylor Swift may be preparing to take legal action. According to People magazine, back in February, Swift informed Kanye West that he must destroy any recordings of their conversation. She also threatened West with criminal prosecution if he failed to comply with that demand. Swift still has the right to bring a legal action against West and Ms. Kardashian.

HOW CAN YOU LEGALLY RECORD CONVERSATIONS?

If you’re going to be recording any of your own conversations in Southern California, you might want to consult first regarding wiretapping and privacy laws with an experienced San Diego criminal defense attorney. A recording device can be a helpful tool for capturing and preserving important information, and it can also be a good way to document what was said when you need to protect yourself legally. But any recorded conversations must be recorded legally, and the consent of all parties involved – preferably their written consent – must be obtained.

Where and what you record also largely determines what laws may apply. Before deciding that you’re operating legally, you really should speak first with a local criminal defense attorney. If you record someone without that person’s knowledge in a public or semi-public place like a street or a restaurant, the person being recorded may or may not have an objectively reasonable expectation that no one is listening in or overhearing the conversation, and the reasonableness of the expectation would depend on the particular factual circumstances.

Thus, you cannot necessarily assume that you are recording legally simply because you are recording in a public place. In California, you should always obtain the consent of all parties involved before recording any conversation that anyone might consider “private” or “confidential.” Both federal and state wiretapping laws limit your ability to record telephone conversations. The law not only allows for the criminal prosecution of someone who allegedly records illegally, but the law also entitles allegedly injured persons to sue for damages.

WHY ARE WIRETAPPING AND PRIVACY CASES SO COMPLICATED?

Because both federal and state laws apply, so any particular case involving recording, wiretapping, and privacy can get legally complicated fast. For example, if you and the person you are recording are in two different states, it’s difficult to determine in advance which laws will have controlling jurisdiction. Again, the safest approach is to obtain an attorney’s advice and to obtain written consent to record from all parties involved. You may also need an attorney’s advice regarding contracts and release forms.

It is almost always illegal to record a private telephone conversation to which you are not a party and to which you do not have the consent of at least one party. Federal law and most states do not permit someone to plant a bug or recording device secretly on a person, on or near a telephone, or in a home, office, or restaurant to record a conversation between two people who have not consented. If you are accused of violating any wiretapping or privacy law – state or federal – in Southern California, get the legal help you’ll need by contacting a San Diego criminal defense attorney.

Both federal law and California law forbid disclosing the contents of an illegally recorded telephone call. In response to Ms. Kardashian’s post of the West-Swift conversation, Taylor Swift responded on Instagram by writing that, “I wanted us to have a friendly relationship. He promised to play the song for me but he never did. While I wanted to be supportive of Kanye on the phone call, you cannot ‘approve’ a song you haven’t heard. Being falsely painted as a liar when I was never given the full story or played any part of the song is character assassination.”

There are plenty of good reasons to record conversations, especially if you are in business or engaged in any other activity where you may need to prove or verify a fact or a piece of information. If you record after obtaining a criminal defense attorney’s legal advice and the full consent of all parties involved, you should face no legal difficulties when recording in the state of California.